Rowena W/O Amrinder Singh vs Amrinder S/O Darshan Singh
2017 Latest Caselaw 7328 Bom

 MCA 870.16.odt                               1
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

              MISC. CIVIL APPLICATION NO.870 OF 2016


 Rowena w/o Amrinder Singh,
 Aged about 35 years,
 Occupation-Nil,
 R/o. House of Pritpal Singh, 15,
 Vidyanagari Society, Near Mount
 Carmel Convent, Opp. Madhuban
 Plaza Shopping Complex,
 Chandrapur.                                       ..        APPLICANT
                                                   (Original Respondent)

                               .. VERSUS ..

 Amrinder s/o Darshan Singh,
 Aged about 35 years,
 Occupation-Service,
 R/o. Flat No.201, Plot No.33,
 Shreeji Heights, Sector 18,
 Kharghar Navi Mumbai,
 District-Raigad.                                  ..      NON-APPLICANT
                                                        (Original Petitioner)

                     ..........
 Shri Rohit Joshi a/w Shri S.R. Renu, Advocates for Applicant,
 Shri C.B. Dharmadhikari a/w Ms. G.B. Dharmadhikari,
 Advocates for Non-Applicant.
                   ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : SEPTEMBER 20, 2017.

ORAL JUDGMENT

This application under section 24 of the Code of

Civil Procedure is filed for transfer of Hindu Marriage Petition

No.244/2016 pending on the file of learned Civil Judge,

Senior Division, Panvel to the file of learned Civil Judge,

Senior Division, Chandrapur.

2] The facts giving rise to the application may be

stated in nutshell as under :

(i) Applicant is wife of non-applicant.

Marriage between duo was solemnized on 21.11.2011. The

couple have a daughter Palak, aged about 5 years. It is the

case of applicant that she was often harassed by the

husband on demand of money. She along with daughter

residing at her parental house at Chandrapur.

(ii) It is stated that in the year 2015,

applicant suffered cardiac arrest. She was admitted to Fortis

Hospital at Vashi, Navi Mumbai. It is stated that an AICD

device with pacemaker was required to be implanted in the

heart of applicant. It is submitted that despite serious

ailment, non-applicant harassed her physically and exploited

sexually. She was required to lodge police reports with

Kharghar and Chandrapur Police Stations in this regard.

(iii) According to applicant, she is undergoing

medical treatment at Chandrapur and Nagpur. Applicant

and her daughter filed proceedings under the Domestic

Violence Act and the same is pending before the learned

Chief Judicial Magistrate, Chandrapur.

(iv) It is stated that non-applicant filed a

proceeding for restitution of conjugal rights under section 9

of the Hindu Marriage Act before Civil Judge, Senior Division,

Panvel. The said proceeding is registered as Hindu Marriage

Petition No.244/2016. Applicant received summons in the

said matter on or around 8.8.2016. It is stated that Panvel is

at the distance of 860 kms from Chandrapur. Applicant is

suffering from serious heart ailment and her medical

condition does not permit her to attend the proceedings

before Panvel court.

(v) Another ground on which applicant seeks

transfer of Hindu Marriage Petition is that due to serious

medical problem, though she is LL.B. and an Advocate, she

is not in a position to earn her livelihood. It is submitted

that father of applicant is 68 years old. He is not in a

position to accompany her on account of his old age.

Applicant submits that she cannot travel alone having

regard to her ailment. She, therefore, seeks transfer of

Hindu Marriage Petition pending before Panvel court

principally on the ground of her ailment.

3] Application is seriously resisted by non-applicant

vide affidavit-in-reply dated 11.2.2017. The submission is

that non-applicant is working and it is not possible for him to

travel from Mumbai to Chandrapur. It is submitted that

applicant and her parents have a house at Navi Mumbai

where they have been living for more than two years and

applicant can easily contest the marriage petition from

Mumbai. It is submitted that applicant is a qualified

professional and there is no question of any financial crunch

being faced by her. According to non-applicant, greater

hardship would be caused to him in case petition is

transferred to Chandrapur, as he is working in a private

company and it is very difficult for him to avail leave for

attending the court proceedings at Chandrapur. Non-

applicant submits that he has to look after his ailing parents.

According to non-applicant no ground for transfer is made

out and prays to reject the application.

4] Heard Shri Rohit Joshi, learned counsel for

applicant and Shri C.B. Dharmadhikari, learned counsel for

non-applicant.

5] Learned counsel for applicant drew attention to the

medical reports from 16.2.2015 to 4.8.2016 to submit that

applicant is suffering from serious heart disease and it is not

possible for her to travel all the way from Chandrapur to

Panvel to attend court proceedings. Learned counsel

submits that non-applicant does not dispute that applicant is

suffering from heart disease and on this ground alone, Hindu

Marriage Petition needs to be transferred from Panvel to

Chandrapur.

6] Another submission on behalf of applicant is that

due to her serious ailment, applicant is not practicing as an

Advocate. She is fully dependent on her aged and ailing

father, who is also not in a position to accompany her to

Panvel. Learned counsel states that on the identical ground

raised by applicant in Criminal Application (Appln)

No.13/2017, learned Single Judge, vide order dated

14.9.2017, allowed transfer of criminal case under section

498-A of the Indian Penal Code to the court at Chandrapur.

It is submitted that the husband and her relatives also

moved Criminal Application Nos.21/2017 and 22/2017 for

transfer of domestic violence case from Chandrapur to

Panvel and both the applications have been rejected, vide

order dated 14.9.2017. The submission is that out of four

proceedings filed between the parties, three proceedings

have been brought to Chandrapur and only one has

remained at Panvel.

7] Per contra, learned counsel for non-applicant

submits that despite her ailment, mobility of applicant is not

restricted as she often visits to Mumbai. According to non-

applicant, in the recent past, applicant travelled from

Chandrapur to Mumbai all the way on twelve occasions

without any support. Another contention raised by the

learned counsel for non-applicant is that applicant is an

advocate at Chandrapur and it is not possible for non-

applicant to get proper legal assistance, as applicant is a

local practicing lawyer in the district. Learned counsel

refers to order dated 5.1.2015 passed in Transfer Petition

(Civil) No.854/2014 by the Hon'ble Supreme Court, wherein

the Hon'ble Supreme Court did not find it fit to transfer a

case, as petitioner-wife was an advocate and moving around

indicating her profession. Learned counsel submits that

mere convenience of wife would not be the sole criteria for

transfer under Section 24 of the Code of Civil Procedure and

placing reliance on the judgment of this court in Smt.

Rekha wd/o Late Avinash Raut .vs. Shivaji Bhimrao

Sapate, 2012 (1) Bom.C.R. 847, submits that mere

convenience of the parties or any one of them may not be

enough for exercise of power. Reliance is placed on the

judgment of Punjab and Haryana High Court dated

30.10.2014 in Transfer Application No.174/2013 to submit

that inconvenience of wife alone is not the sole

consideration for allowing transfer under section 24 of the

Code of Civil Procedure.

8] Admittedly, applicant is residing at Chandrapur.

The distance between Chandrapur and Panvel as stated by

applicant is 860 kms. Looking to the distance from

Chandrapur to Panvel, this court does not find that

submission of applicant that she will be put to hardship for

attending the court proceedings at Panvel is without

substance.

9] Non-applicant does not dispute that applicant is

suffering from heart ailment. According to non-applicant,

ailment does not come in the way of applicant to attend the

court proceedings at Panvel, as otherwise she often visits

Mumbai from Chandrapur. Applicant disputes the same and

states that under some compelling circumstances she is

required to travel to Mumbai.

10] It is significant to note that non-applicant has not

seriously disputed medical reports of applicant from

16.2.2015 to 4.8.2016 placed on record. Considering the

serious medical ailment, criminal case which was pending

before Panvel court came to be transferred to Chandrapur

court. So far as inconvenience to non-applicant as stated by

him is concerned, two criminal applications filed for transfer

of domestic violence proceedings from Chandrapur to Panvel

have been rejected by the learned Single Judge.

11] The only question which therefore remains to be

addressed is whether transfer of petition from Panvel to

Chandrapur is to be allowed as applicant is an advocate at

Chandrapur and non-applicant would not get proper legal

assistance to proceed with his petition. In this connection,

additional affidavit has been filed by applicant on 14.8.2017.

In paragraph 10 of the affidavit she disclosed name of an

advocate representing non-applicant before Chandrapur

court. She has also stated that an advocate representing

non-applicant belongs to an office of a very reputed and

highly respected lawyer at Chandrapur. She states that an

advocate representing non-applicant himself is highly

respected figure of the Bar. The specific averments in

additional affidavit would clearly negative the contention of

non-applicant that he will be deprived of proper legal

assistance in case petition is transferred from Panvel to

Chandrapur.

12] Further applicant has categorically stated that

because of her serious ailment, she is not practicing as an

advocate. This has not been denied by non-applicant.

In this situation grievance of the non-applicant that he

would be deprived of proper legal assistance holds no water.

13] In the above premise, this court finds that

applicant has made out a case for transfer of Hindu Marriage

Petition from Panvel to Chandrapur. Application, therefore,

deserves to be allowed. Hence, the following order.

ORDER

(i) Misc. Civil Application No.870/2016 is allowed.

(ii) Hindu Marriage Petition No.244/2016 pending on

the file of learned Civil Judge, Senior Division, Panvel is

directed to be transferred from the said court to the file of

learned Civil Judge, Senior Division, Chandrapur.

(iii) Non-applicant need not attend the court on every

date and he can be represented through his lawyer/s.

However, on material dates, as and when required, non-

applicant shall attend the court at Chandrapur.

 (iv)           No order to costs.



                                     (Kum. Indira Jain, J.)
 Gulande, PA